[Ord. No. 1283 §1(900.200), 1-16-2003]
A. Unlawful To Operate Without A Franchise. It shall be unlawful
for any person to construct, operate or maintain a cable system or
to provide cable service or other competing multichannel video services,
including OVS, in the City without a franchise authorizing the same,
unless applicable Federal or State law prohibits the City's enforcement
of such a requirement. Any such person shall be subject to a fine
of five hundred dollars ($500.00) per day. The payment of such fine
notwithstanding, all such violators shall be subject to all other
applicable provisions of this code to the fullest extent allowed by
law including, but not limited to, the payment of a cable franchise
fee. This Section shall not apply to a cable franchisee who has submitted
a proposal for renewal of its franchise unless the proposal has been
denied by a final and unappealable decision.
B. Nature Of Rights Granted By Any Cable Franchise. Cable franchises
shall not convey title, equitable or legal, in the rights-of-way and
shall give only the right to occupy the rights-of-way for the purposes
of providing cable services and cable Internet services. No franchise
shall grant the right to use facilities owned or controlled by the
City or a third (3rd) party without the consent of such party, nor
shall a franchise excuse cable franchisee from obtaining appropriate
access or attachment agreements before locating its facilities on
the facilities owned or controlled by the City or a third (3rd) party.
To the extent not inconsistent with this code, all franchises shall
be deemed to incorporate and be limited by the provisions of this
code and shall create rights for the sole and exclusive use of franchisee.
Any franchise or other authorization for cable services, in whatever
form granted, shall not grant or include:
1. Any
other permit or authorization required for the privilege of transacting
and carrying on a business within the City required by the ordinances
and laws of the City, including the provision of communications services;
2. Any
permit, agreement or authorization required in connection with operations
in the rights-of-way including, without limitation, permits and agreements
for placing devices on or in poles, conduits or other structures,
whether owned by the City or a private entity, for excavating or performing
other work in or along the rights-of-way.
C. Franchise Not Exclusive.
1. Any
cable franchise granted by the City shall be non-exclusive. The grantor
specifically reserves the right to grant, at any time, such additional
franchises for a cable television system or any component thereof
to any other person including itself, as it deems appropriate, subject
to this code and applicable Federal and State law.
2. The
terms and conditions of any cable franchises granted or renewed after
the effective date of this Chapter shall be, when taken as a whole,
no less burdensome or more beneficial than any other cable franchises
granted or renewed subject to this Chapter, when taking into consideration
and where reasonably warranted, the situation that existed at the
time in which the earlier terms were adopted. Provided however, that
nothing herein shall be construed as requiring the use of identical
terms or conditions, or limit the enforceability of conditions that
are freely negotiated.
3. Further
provided, nothing in this Subsection shall create any remedy other
than that which is provided for herein, nor shall it be deemed to
create any cause of action or claim of breach for any party.
4. Before
granting an additional cable franchise, the City shall give written
notice to every existing cable franchisee of any proposal to serve
all or part of existing cable franchisee's franchise area, specifying
the date, time and place at which the City will hold a public hearing
on the application for an additional franchise. In the event that
an existing cable franchisee believes that the City has entered into
an additional cable franchise with terms or provisions that are, taken
as a whole, more favorable or less burdensome than the terms set forth
in its franchise, taking into consideration, where reasonably warranted,
the situation that existed at the time in which the different provisions
were adopted, the City shall, upon request by such existing cable
franchisee, enter into good faith negotiations with the existing cable
franchisee to modify the cable franchisee's franchise.
D. Franchise Territory. Every cable franchise shall apply to
the entire territorial area of the City as it exists now or may later
be configured unless the specific franchise agreement provides otherwise.
E. Federal, State And City Jurisdiction.
1. This
code shall be construed in a manner consistent with all applicable
Federal and State laws.
2. In the
event that the Federal or State Government discontinues pre-emption
in any area of cable communications over which it currently exercises
jurisdiction in such manner as to expand rather than limit municipal
regulatory authority, City may, if it so elects, adopt rules and regulations
in these areas to the extent not inconsistent with applicable law
and the reasonable exercise of the City's Police powers.
3. The
provisions of this code shall apply to all cable franchises granted
or renewed after or simultaneously with the effective date of this
Chapter. This code shall also apply to all existing cable franchises,
to the extent not inconsistent with the terms of any such franchise
or applicable law. A cable franchise, whether entered into before
or after the enactment of this code, (including all of cable franchisee's
particular rights, powers, protections, privileges, immunities and
obligations associated therewith as the same exist on the date hereof),
shall constitute a legally binding contract between the City and cable
franchisee and as such cannot be amended, modified or changed by the
grantor without the consent of cable franchisee in any manner whatsoever,
whether by ordinance, rule, regulation or otherwise. In the event
of any conflict between the terms and conditions of a cable franchise
and the provisions of this code and other generally applicable regulatory
ordinances of the City, the specific terms of the franchise shall
control; provided however, that nothing herein contained shall preclude
the City from the proper exercise of its Police powers.
4. In the
event of a change in State or Federal law which by its terms would
require the City to amend this code, the parties shall modify the
existing cable franchise in a mutually agreed upon manner.
F. Initial Franchise Applications. Any person desiring an initial
franchise for a cable system shall file an application with the City.
A non-refundable application fee of one thousand dollars ($1,000.00)
shall accompany the application, which shall not be considered or
credited against the collection of applicable cable franchise fees.
The application fee shall be used to defray out-of-pocket expenses
incurred by the City in connection with processing the application.
If any portion of the application fee is not required to defray said
out-of-pocket costs, such unused portion shall be refunded to the
applicant.
G. Consideration Of Initial Applications. Upon receipt of any
application for an initial franchise, the City Administrator shall
prepare a report and make his/her recommendations respecting such
application to the Board of Aldermen.
H. Franchise Renewal. Cable franchise renewals shall be in
accordance with applicable law. The City and a cable franchisee, by
mutual consent, may enter into renewal negotiations at any time during
the term of the franchise.
I. Grant Of Additional Franchise And Competing Service. The
City may issue competing cable franchises in the City. The Governing
Body of the City shall order publication of a notice in an official
City newspaper of a hearing to afford the public in the franchise
area, including other rights-of-way users, as well as the public at
large, an opportunity to comment on the proposed franchise. In considering
whether to grant one (1) or more additional franchises, the City may
consider the following issues:
1. The
positive and/or negative impact of an additional cable franchise on
the community.
2. The
ability and willingness of the specific applicant in question to provide
cable services to the entire franchise area which is served by the
existing cable franchisee. The purpose of this Subsection is to ensure
that any competition which may occur among cable franchisees will
be on terms which when taken as a whole do not give a competitive
advantage to one cable franchisee over another.
3. The
amount of time it will take the applicant to complete construction
of the proposed cable system and activate cable service in the entire
franchise area; and whether the applicant can complete construction
and activation of its cable system in a timely manner.
4. The
financial capabilities of the applicant and its guaranteed commitment
to make the necessary investment to erect, maintain and operate the
proposed cable system for the duration of the franchise term. In order
to ensure that any prospective cable franchisee does have the requisite
current financial capabilities, the City may request equity and debt
financing commitment letters, current financial statements, bonds,
letters of credit or other documentation to demonstrate to the City's
satisfaction that the requisite funds to construct and operate the
proposed cable system are available.
5. The
quality and technical reliability of the proposed cable system, based
upon the applicant's plan of construction and the method of distribution
of signals, and the applicant's technical qualifications to construct
and operate such cable system.
6. The
experience of the applicant in the erection, maintenance and operation
of a cable system.
7. The
capacity of the rights-of-way to accommodate one (1) or more additional
cable systems and the potential disruption of those rights-of-way
and private property that may occur if one (1) or more additional
franchises are granted.
8. The
disruption of the availability of cable service within the City.
9. Such
other information as the City may deem appropriate to be considered
prior to granting any competing or overlapping franchise.
J. Permits For Non-Franchised Entities. The City may issue
a license to a person other than the cable franchisee to permit that
person to traverse any portion of a cable franchisee's cable franchise
area within the City in order to provide cable service outside, but
not within the City. Such license or easement, absent a grant of a
cable franchise in accordance with this Chapter, shall not authorize
nor permit said person to provide cable service of any type to any
home or place of business within the City.
[Ord. No. 1283 §1(900.205), 1-16-2003]
A. Recovery Of Processing Costs And Expenses.
1. During
the term of a franchise, if the franchisee initiates a request for
approval regarding the transfer of a franchise or change in control
of the franchisee except to an affiliate, the franchisee shall reimburse
the City for all reasonable out-of-pocket costs, including attorneys'
and consultants' fees and costs, incurred by the City as part of City's
reasonable review and processing of franchisee's request, up to a
maximum amount not to exceed ten thousand dollars ($10,000.00) per
request for approval. Payments of such costs and expenses shall not
be deemed to be "franchise fees" within the meaning of Section 622
of the Cable Act (47 U.S.C. Section 542) and such payments shall not
be deemed to be:
a. Payments
in kind or any involuntary payments chargeable against the compensation
to be paid to the City by franchisee; or
b. Part
of the voluntary compensation to be paid to the City by franchisee.
2. To aid
in the analysis and resolution of any future disputed matters relative
to a franchise agreement or MCSR ordinance or MCSR ordinance, the
City and franchisee may, by mutual agreement (both as to whether to
hire and whom to hire), employ the services of technical, financial
or legal consultants as mediators. All expenses incurred by the City
and/or the franchisee in this regard shall be borne by the party incurring
same, except as otherwise provided herein.
B. Liability Insurance.
1. Upon
the effective date of a franchise agreement, the franchisee shall,
at its sole expense, take out and maintain during the life of a franchise
commercial general liability insurance with a company licensed to
do business in the State of Missouri with a rating by Best of not
less than "A" that shall protect the franchisee, the City and the
City's Officials, Officers and employees from claims which may arise
from operations under a franchise, whether such operations are by
the franchisee, its officers, directors, employees and agents or any
subcontractors of franchisee. This liability insurance shall include,
but shall not be limited to, protection against claims arising from
bodily and personal injury and damage to property resulting from all
franchisee operations, products, services or use of automobiles or
construction equipment. The amount of insurance for single limit coverage
applying to bodily and personal injury and property damage shall be
two million dollars ($2,000,000.00) combined single limit coverage
and evidence of excess coverage. The following endorsements shall
attach to the liability policy:
a. The
policy shall cover personal injury as well as bodily injury.
b. The
policy shall cover blanket contractual liability subject to the standard
universal exclusions of contractual liability included in the carrier's
standard endorsement as to bodily injuries, personal injuries and
property damage.
c. Broad
form property damage liability shall be afforded.
d. The
City shall be named as an additional insured on the policy.
e. An
endorsement shall be provided which states that the City is listed
as an additional insured.
f. Standard
form of cross-liability shall be afforded.
g. An
endorsement stating that the policy shall not be cancelled or materially
modified so as to be out of compliance with the requirements of this
Section or not renewed without thirty (30) days' advance written notice
of such event being given to the City Administrator.
2. Unless
otherwise agreed to by the City through its risk manager, franchisee
shall not permit any subcontractor to commence or continue work until
both shall have obtained or caused to be obtained all insurance required
under this Section. Said insurance shall be maintained in full force
and effect until the completion of construction approval thereof by
the City.
3. Franchisee
shall obtain and maintain Workers' Compensation insurance for all
franchisee's employees and in case any work is sublet, franchisee
shall require any subcontractor similarly to provide Workers' Compensation
insurance for all subcontractor's employees, all in compliance with
State laws and to fully protect the City from any and all claims arising
out of occurrences on the work. Franchisee hereby indemnifies City
for any damage resulting to it from failure of either franchisee or
any subcontractor to take out and maintain such insurance. Franchisee
shall provide the City Administrator with a certificate of insurance
indicating Workers' Compensation coverage prior to commencing construction
of the system.
4. The
City Administrator reserves the right to adjust the limit coverage
requirements on the basis of changes in the Consumer Price Index over
the life of the franchise or changes in the law affecting sovereign
immunity. Insurance, insurance certificates and evidence of insurance
are subject to review and approval of the City Administrator for compliance
with these requirements.
5. Franchisee
shall submit to City's risk manager documentation of the required
insurance including a certificate of insurance signed by the insurance
agent and companies named, as well as the policy with all properly
executed endorsements.
6. Any
deductible or self-insured retention must be declared to the City
Administrator.
C. Indemnification.
1. Except
as otherwise provided herein, franchisee shall indemnify, hold harmless,
release and defend City, its officers and employees from and against
any and all lawsuits, claims, actions, demands, damages, disability,
losses, expenses including reasonable attorneys' fees and other defense
costs or liabilities of any nature that may be asserted by any person
or entity, from any cause whatsoever, including City's concurrent
negligence, arising out of or in any way connected with the operations,
expressly authorized herein, the exercise of the franchise pursuant
to a franchise and/or the activities of franchisee, its subcontractor,
employees and agents hereunder. Franchisee shall be solely responsible
and save City harmless from all matters relative to payment of franchisee's
employees including compliance with Social Security, withholdings,
etc.
2. This
indemnification obligation is not limited in any way by a limitation
of the amount or type of damages or compensation payable by or for
franchisee under Workers' Compensation, disability or other employee
benefit acts, acceptance of insurance certificates required under
a franchise or the terms, applicability or limitations of any insurance
held by franchisee.
3. City
does not and shall not waive any rights against franchisee which it
may have by reason of this indemnification, because of the acceptance
by City, or the deposit with City by franchisee, of any of the insurance
policies described in a franchise.
4. This
indemnification by franchisee shall apply to all damages and claims
for damages of any kind suffered by reason of any of the operations
referred to in this Section, regardless of whether or not such insurance
policies shall have been determined to be applicable to any such damages
or claims for damages.
5. Franchisee
shall not be required to indemnify City for damages arising solely
from the negligence or malfeasance of the City or its officials, boards,
commissions, agents or employees.
6. With
respect to any claims that may be subject to franchisee's obligation
to indemnify the City, franchisee shall immediately notify the City
risk manager of any and all claims filed against the franchisee or
City and City jointly and shall provide the City with a copy of the
same. Franchisee's obligations hereunder shall be subject to the City
giving the franchisee written notice of its obligation to indemnify
the City within seven (7) days of City's receipt of a claim or action
pursuant to this Section. If the City determines that it is necessary
for it to employ separate counsel, the costs for such separate counsel
shall be the responsibility of the City.
7. Franchisee
shall indemnify, defend and hold harmless the City, its officers,
agents and employees against any and all claims or challenges brought
against the City with respect to the validity of the terms and conditions
of a franchise grant.
8. The
fact that franchisee carries out any activities under a franchise
through independent contractors shall not constitute an avoidance
of or defense to franchisee's duty of defense and indemnification
under this Section.
D. Security Fund And Performance Bond.
1. At least
thirty (30) days prior to the commencement of construction, franchisee
shall deposit into a bank account established by the City and maintain
on deposit through the term of a franchise the sum of fifty thousand
dollars ($50,000.00) or provide the City with a bond in the same amount
as a security ("Security Fund") for the faithful performance by it
of all the provisions of a franchise and compliance with all orders,
permits and directions of the City and the payment by franchisee of
any claim, liens and taxes due the City which arise by reason of the
construction, operation or maintenance of the cable system. Interest
on this deposit shall accrue to the franchisee. Provision shall be
made to permit the City to withdraw funds (or draw against the bond)
from such Security Fund as and to the extent permitted by a franchise.
Franchisee shall not use such Security Fund for other purposes and
shall not assign, pledge or otherwise use this Security Fund as security
for any purpose.
2. The Security Fund may be drawn on by City for those purposes specified in Subsection
(D)(1) hereof. However, prior to any draw by the City on the Security Fund, the City must notify franchisee of its intent to draw on the fund and franchisee must be given thirty (30) days to correct the situation that caused the City to issue such notice. If correction is not made within thirty (30) days of notice, City may proceed to make such correction and draw upon the Security Fund.
3. Within
thirty (30) days after notice to franchisee that any amount has been
withdrawn by the City from the Security Fund and provided franchisee
has waived or failed to exercise its right to appeal said withdrawal,
franchisee shall deposit a sum of money sufficient to restore such
Security Fund (or bond level) to its original amount.
4. Franchisee
shall have the right to appeal to the Governing Body for reimbursement
in the event franchisee believes that the Security Fund was drawn
upon improperly. Franchisee shall also have the right of judicial
appeal if franchisee believes the Security Fund has not been properly
drawn upon in accordance with a franchise. Any amounts the City erroneously
or wrongfully withdraws from the Security Fund as determined by the
judicial appeal shall be returned to franchisee with interest.
5. Prior
to the commencement of any construction related to the building, rebuilding
or upgrading of the system required under this agreement, franchisee
shall execute and deliver to the City a cash deposit, performance
bond or unconditional irrevocable letter of credit payable to the
City in the face amount equal to two hundred thousand dollars ($200,000.00)
as surety for faithful performance under the terms and conditions
of the franchise agreement. If the bond is on an annual coverage basis,
renewal of each succeeding year shall be submitted to the City thirty
(30) days prior to the termination date of the existing bond. A surety
company of recognized standing and approved by the risk manager of
the City, authorized to do business in the State of Missouri, must
execute the performance bond. If a letter of credit is chosen, it
must be in a form acceptable and approved by the Finance Director
of the City, on a bank acceptable to the City issued in favor of the
City. Upon satisfactory completion of the construction, the performance
bond shall be released.
6. Nothing
herein shall be deemed a waiver of the normal permit and bonding requirements
made of all contractors working within the City's rights-of-way.
7. Maintenance
of the requisite Security Fund and performance bond shall not in any
way limit the liability of the franchisee for any failure to fully
perform its obligations under a franchise agreement.
E. Compliance With Applicable Laws And Ordinances.
1. Franchisee
shall conform to all generally applicable laws, rules and regulations
of the United States and the State of Missouri in the construction
and operation of its cable system and all generally applicable rules
and regulations of the FCC.
2. Any
right, power, protection, privilege or immunity which is provided,
granted or imposed on franchisee under or by virtue of the Cable Act,
as it may be amended or interpreted from time to time after the date
hereof, shall remain inviolate and shall be available to franchisee
notwithstanding any contrary provision of a franchise and the acceptance
of the terms and conditions of a franchise shall not be construed
as a waiver or release by franchisee or City of any right, power,
protection, privilege, immunity or obligation under the Cable Act,
the laws or Constitution of the United States or the laws and Constitution
of the State of Missouri.
[Ord. No. 1283 §1(900.210), 1-16-2003]
A. Cable System Design. Every cable franchisee shall offer
cable service that meets the cable-related needs of the City and are
comparable or superior to the cable services offered by the franchisee,
or its affiliates, to subscribers in any other Kansas City municipal
or Kansas City metropolitan area. The cable franchise shall incorporate
a description of the cable franchisee's cable system including the
general design and capabilities of the cable system to identify for
the City how the cable system will meet the current and future cable
needs of the City.
B. The Cable System. Every cable system shall pass by every single-family dwelling unit and multiple-family dwelling unit within the franchise area in accordance with line extension policies set forth in this Chapter. Service shall be provided to subscribers in accordance with the schedules and line extension policies specified in Section
620.140(J)(1) in this Chapter unless otherwise specified in the franchise.
C. Drops To Public Buildings. Unless the cable franchisee and
City agree in a cable franchise agreement to terms whereby franchisee
provides other alternative public services or I-net facilities to
meet the cable-related needs of the City, franchisee shall provide
at no charge cable services as set out in the following Subdivisions
(1), (2) and (3).
1. Every
cable franchisee shall provide installation of at least one (1) cable
drop and one (1) outlet and provide monthly basic cable service, without
charge, to public buildings specified by the City in the applicable
franchise, where the drop does not exceed two hundred (200) feet.
All accredited K-12 schools and public libraries shall also receive
one (1) cable drop and one (1) outlet and monthly basic cable service
at no charge, subject to the above two hundred (200) foot limit. The
location of such cable drops and outlets shall be determined in cooperation
with the management of the public building to which the connection
is to be made. Following the City's designation of additional public
building(s) to receive cable service, a cable franchisee shall complete
construction of the drop and outlet within one hundred eighty (180)
days if the City requests construction, weather permitting and subject
to payment of the direct incremental costs of installation in excess
of two hundred (200) feet. Drops and outlets that are in addition
to the one (1) free drop and outlet required by this Section shall
be provided by a cable franchisee at the cost of cable franchisee's
direct incremental cost. Alternatively, at an institution's request,
the institution may add outlets at its own expense, as long as such
installation meets the cable franchisee's standards which shall be
made readily available to any public entity upon request. Additional
outlets and services to public buildings are subject to the applicable
commercial rate.
2. All
such cable service outlets shall not be utilized for commercial purposes.
The City shall take reasonable precautions to prevent any use of a
cable franchisee's cable system in any inappropriate manner or that
may result in loss or damage to the cable system. Users of such outlets
shall hold the cable franchisee harmless from any and all liability
or claims arising out of their use of such outlets, other than for
those claims arising out of improper installation or faulty equipment.
3. In instances
where the drop line from the feeder cable to the public building,
school or library exceeds two hundred (200) feet, the cable franchisee
may charge for its direct incremental costs that are incurred in exceeding
this length. A cable franchisee may require advance payment of this
cost.
D. School And Library Cable Modems. Unless otherwise specified
in the applicable franchise, upon activation and commercial offering
of two-way cable modem service by the cable franchisee within the
franchise area, such cable franchisee shall provide upon written request
one (1) courtesy cable modem with cable Internet service without charge
to every State accredited K-12 public school and public library in
the franchise area, where the drop does not exceed two hundred (200)
feet, which may constitute an element of an individual franchise I-net
requirement.
E. Use Of Cable Franchisee's Facilities. Subject to any applicable
State or Federal regulations, the City shall have the right to install
and maintain, upon the poles and within the underground pipes and
conduits of a cable franchisee, any wires and fixtures desired by
the City for public purposes. Provided however, that:
1. Such
use by City shall not interfere with the current or future use by
cable franchisee or any pre-existing user or lessor of franchisee's
facilities;
2. Such
use by City is restricted to non-commercial public purposes; and
3. City
takes reasonable precautions to prevent any use of cable franchisee's
facilities in any manner that results in an inappropriate use thereof
or any loss or damage to the cable system. For the purposes of this
Subsection, "public purposes" includes, but is not
limited to, the use of the structures and installations for City fire,
Police, traffic, utility and/or signal systems, but not for commercial
cable system purposes in competition with the cable franchisee.
F. Upgrade Of System. Every cable franchisee shall upgrade
its cable system (herein referred to as the "system upgrade"), if
required, as set forth in its respective franchise.
G. Emergency Alert Capability. Every cable franchisee shall
at all times provide the system capabilities to comply with the FCC's
emergency alert system rules and regulations. Provided, that if the
FCC at some future date eliminates the current regulations, the City
and cable franchisee shall mutually agree upon the applicable standard
on a going forward basis.
H. Periodic Review. The City and any franchisee shall engage
in a "periodic review" to evaluate changes in law, technology or service
and reasonable procedures for mutually agreed upon modifications to
the cable franchise to incorporate changes identified as desirable
or necessary as a result of any such periodic review.
I. Closed Captioning And Descriptive Audio Service. Every cable
franchisee will make audio descriptive service and closed captioning
capabilities available to the extent required by State and Federal
law.
J. Standby Power. Within twelve (12) months of activation of
the system, the cable franchisee shall provide standby power generating
capacity capable of providing at least twelve (12) hours of emergency
supply at the cable system headend. Every cable franchisee shall maintain
standby power system supplies throughout the major trunk cable networks
capable of providing emergency power within the standard limits of
commercially available power supply units.
K. Status Monitoring. Every cable franchisee shall provide
an automatic status monitoring system, or a functional equivalent,
when the cable system has been activated for interactive service provided
that such status monitoring is technically and economically feasible.
L. System Capabilities.
1. The
design and construction of every franchisee's cable system shall at
the franchisee's option consist of a hybrid fiber coax (HFC) system
or a very high speed digital subscriber line (VDSL) system. If franchisee
deploys a HFC system, then at a minimum it will provide the capabilities
of a seven hundred fifty (750) MHz hybrid fiber optic-coaxial system
architecture and will begin with the effective date of a franchise
and shall be completed throughout the City in accordance with the
density and line extension requirements of this agreement and activated
to provide services according to a construction plan and schedule
developed by the franchisee and approved in advance by the City. If
a VDSL system is deployed by franchisee, then a City-wide digital
television system utilizing a fiber-optic infrastructure and fiber-to-the-node
architecture with a capacity of not less than one point two gigabits
per second (1.2 Gbps) and capable of accommodating eighty (80) standard
video channels will be constructed. Additionally, the digital television
system shall be suitable for providing broadband capability including
Internet access via VDSL. Construction and activation of the cable
system will be completed forty-two (42) months from the effective
date of a franchise agreement. Franchisee shall commence construction
within twelve (12) months following the effective date of a franchise.
For purposes of a franchise, "substantially completed" shall mean service to all residential areas within the City having
a density of twenty (20) homes per one (1) cable mile. During the
construction phase of the franchise, franchisee shall comply with
all customer service obligations with respect to customers whose premises
are passed by portions of the franchisee's network which are fully
activated, tested and available for service. In constructing and activating
its cable system the franchisee shall not discriminate between different
areas of the City on the basis of race, creed, religion or income
level.
2. Each
franchisee shall, at a minimum, retain such bandwidth capabilities
throughout the term of a franchise. To the extent technically and
economically practical, a franchisee shall progressively improve the
system capabilities.
3. Each
franchisee shall make an annual update presentation to the Governing
Body regarding, at a minimum, its services and planned developments
and changes, industry developments, competition and other topics reasonably
requested to be included in the presentation by the City.
M. HDTV/ATV Conversion. Conversion to high definition television/advanced
television (HDTV/ATV) formats shall occur in accordance with applicable
Federal law.
[Ord. No. 1283 §1(900.215), 1-16-2003]
A. Support For Local Cable-Related Needs.
1. Public, educational and governmental access.
a. Access channels. Each franchisee shall offer the following
access channels to each of its subscribers who receive all or any
part of the cable services offered on the cable system.
(1) Public educational access. One (1) specifically
designated channel for local educational access use to be administered
by the public school district(s) located within the franchise area.
(2) Local educational access. One (1) specifically designated
channel for local educational access use to be administered by the
public school district(s) located within the franchise area.
(3) Government access. One (1) specifically designated
channel for government access use by the City. The City shall be responsible
for the oversight and programming of the government access channel.
The City may jointly utilize this channel with other jurisdictions
served by a common headend of the franchisee.
2. Remote origination. Signal input points and equipment shall
be made available at least at one (1) site for live program origination
on the government and local educational access channels. Each access
channel shall be activated to enable the City and schools to remotely
initiate and scramble programs and services. Franchisee will provide
City and schools with proper formats and protocols to facilitate broadcast
on government and educational access channels.
3. Additional access channels. In addition to the educational
and government access channels described above, if desired by the
City, franchisee shall make one (1) additional access channel available
to the City upon request by the City for either educational, governmental
or public access purposes.
4. Unused channels. If demand for use of the access channels
does not warrant activation of all such channels, public and educational
access programming may be combined on one (1) or more channels. In
no case, however, shall the government access channel(s) or government
programming be combined with any other use except by express written
permission of the City of Platte City, Missouri, and only upon a demonstration
that there is no suitable alternative capacity available on other
access channels.
5. Interconnection.
a. Each
franchisee shall cooperate with other cable providers in the City
and the surrounding area to interconnect its network where feasible
in order to facilitate shared access programming on government and
local educational access channels.
b. The
cable system shall be designed to enable cablecasting of all access
or local origination channels throughout the entire City without respect
to the specific cable operator.
c. Each
franchisee shall provide other franchised cable operators within the
City with a PEG feed at a mutually agreeable location.
d. Each
franchisee and City shall jointly be responsible for coordination
of technical arrangements with other cable service providers in the
City and the surrounding area. The City shall utilize its best efforts
to facilitate such interconnection.
6. Administration. Oversight and administration of the access
channels, except as otherwise specified in other than the City channel,
shall be originally carried out by the franchisee, however, at any
time after commencement of a franchise, the City may elect to transfer
responsibility for these channels to itself or a designated community
access corporation (CAC).
7. Franchisee support for local programming. The franchisee
shall provide the following support for access:
a. Reservation,
dedication and use of all access channels required by a franchise.
b. Franchisee
or its designee shall provide and maintain the link necessary to insert
public, educational and government access programming on the subscriber
network and all equipment necessary in the headend to allow quality
playback that meets acceptable broadcast standards. Franchisee or
its designee shall also provide cable programming transmission facilities
necessary for introducing access programming onto franchisee's cable
system for distribution to subscribers.
8. Access channel designations. Each franchisee and City will
work together to assign mutually agreeable channel designations for
access channels.
9. Governmental access rules and procedures. The use of government
access channels shall be in accordance with and subject to the rules
and procedures adopted by the franchisee or the City.
10. Assistance with soliciting contributions. Once per year,
if requested by the City, the franchisee shall provide its subscribers
an access promotion.
11. Technical quality. Franchisee shall maintain all access
channels, including interconnected access channels, at the same level
of technical quality and reliability required by the FCC's rules for
residential cable television subscribers.
12. Proof of performance testing. To ensure high quality service
on access channels, copies of results of FCC proof of performance
testing of the cable system shall be made available to the City throughout
the term of a franchise upon request. Included in such proof of performance
testing, to the extent feasible and subject to FCC rules and regulations,
franchisee will designate cable system taps corresponding to each
of the public buildings where programming is originated.
13. Change in technology. In the event franchisee makes any
change in the cable system and related equipment and facilities or
in its signal delivery technology, which directly or indirectly affects
the transmission or signal quality of PEG access services or programming,
the franchisee shall at its own expense take all necessary technical
steps to ensure that the capabilities of PEG access services and programming
are not diminished or adversely affected by such change.
B. Institutional Network, Access Channels.
1. Every
cable franchisee shall, subject to applicable law, provide or fund
an institutional network or PEG access facilities or other public
interest services, or some combination of the same, for use by institutional
users. Such public interest requirements shall at a minimum satisfy
the community need for such facilities and/or services as determined
by the Governing Body for the period of the applicable franchise.
2. Every
cable franchisee shall also provide channel capacity and support for
public, educational and government access channels as specified herein.
All such PEG access channels shall be available to all subscribers
as part of their basic cable service. Given the on-going changes in
the state of technology as of the effective date of this code, absent
the express written consent of the City, franchisee shall transmit
PEG access channels in the format or technology utilized to transmit
all of the channels on the basic cable service tier.
[Ord. No. 1283 §1(900.220), 1-16-2003]
A. General Technical Standards And Customer Service Practices.
1. To the
extent set forth herein, this code incorporates cable service technical
standards and establishes customer service practices that every cable
franchisee must satisfy.
2. Every
cable franchisee shall maintain such equipment and keep such records
as required to comply with all customer service and technical standards
required by these regulations and other applicable laws. The cable
franchisee shall at all times assist and cooperate with City in explaining,
interpreting and understanding such records or reports.
B. Test And Compliance Procedure. Tests for a cable system
shall be performed periodically in a manner so as to conform with
FCC specifications. The tests may be witnessed by representatives
of the City and written test reports shall be made available to the
City upon request. If any test locations fail to meet the performance
standards, the cable franchisee shall be required to indicate what
corrective measures have been taken and shall have the site retested.
C. Cable System Office Hours And Telephone Availability.
1. Every
cable franchisee shall maintain a conveniently located customer service
center, which shall include a place where subscribers may pay their
bills, pick up and return converter boxes and comparable items and
receive information on the cable franchisee and its services. Such
service center shall be open at least during normal business hours.
cable franchisee shall also maintain a publicly listed toll-free or
local telephone line that is available to subscribers twenty-four
(24) hours a day, seven (7) days a week.
2. Every
cable franchisee shall have trained representatives available to respond
to subscriber telephone inquiries during normal business hours.
3. After
normal business hours, the telephone access line may be answered by
a service or an automated response system, including an answering
machine. Inquiries received after normal business hours must be responded
to by a trained representative on the next business day.
4. Under
normal operating conditions, telephone answer time by a trained customer
service representative or automated response unit, including wait
time, shall not exceed thirty (30) seconds when the connection is
made. If a call must be transferred, transfer time shall not exceed
thirty (30) seconds. Under normal operating conditions, these standards
shall be met no less than ninety percent (90%) of the time, measured
on a quarterly basis.
5. Under
normal operating conditions, a cable franchisee shall establish an
inbound telephone system upon which subscribers shall not receive
a busy signal more than three percent (3%) of the time.
6. A cable
franchisee will not be required to acquire equipment or perform surveys
to measure compliance with the telephone answering standards above
unless an historical record of complaints indicates a clear failure
to comply.
D. Service Calls And Installations. Under normal operating
conditions, each of the following standards must be met no less than
ninety-five percent (95%) of the time as measured on a quarterly basis:
1. Standard
installations will be performed within fifteen (15) business days
after an order has been placed. "Standard installations" are those that are located up to one hundred twenty-five (125) feet
from the existing distribution system.
2. The
appointment window alternatives for installations, service calls and
other installation activities will be either a specific time or within
a maximum four (4) hour time block during normal business hours. The
cable franchisee may schedule service calls and other installation
activities outside of normal business hours for the express convenience
of a subscriber, if so requested.
3. A cable
franchisee may not cancel an appointment with a subscriber after the
close of business on the business day prior to the scheduled appointment.
4. If a
cable franchisee's representative is running late for an appointment
with a subscriber and will not be able to keep the appointment as
scheduled, the subscriber must be contacted. The appointment must
be rescheduled, as necessary, at a time which is convenient for the
subscriber.
E. Repairs And Interruptions.
1. Under
normal operating conditions and excluding conditions beyond the control
of a cable franchisee, every cable franchisee will begin working on
service interruptions and outages within a reasonable time frame but
in no event later than twenty-four (24) hours after the service interruption
or outage becomes known. The cable franchisee must begin actions to
correct other service problems on the business day following notification
of such service problems.
2. The
term "service interruption" means the loss of picture
or sound on one (1) or more cable channels.
3. Work
on service problems, excluding conditions beyond the control of a
cable franchisee, must begin by the next business day after notification
of the problem.
4. Outside
repairs to cable plant which cannot be made by the initial service
technician dispatched shall, under normal operating conditions, be
rescheduled within the next business day after the originally scheduled
service call. The subscriber does not need to be home for outside
plant and line repairs.
5. A cable
franchisee may interrupt service only for good cause and for the shortest
time reasonably possible, including interruption for system upgrade,
maintenance and repair. Subject to the reasonable safety precautions
for the benefit of the cable franchisee's employees and agents, routine
maintenance shall occur at times that affect the fewest number of
subscribers, generally between Midnight and 6:00 A.M. To the extent
that specific neighborhoods will be affected by a planned outage,
such as during an upgrade, the cable franchisee shall provide advance
notice through telephone calls, door hangers and/or other reasonable
means.
6. Upon
subscriber request a cable franchisee shall provide a credit equivalent
to a pro rata of the monthly cable rate for each service interruption
exceeding four (4) hours in any twenty-four (24) hour period, unless
it is demonstrated that the subscriber caused the outage or the outage
was planned as part of an upgrade or other work that occurred between
the hours of Midnight and 6:00 A.M., of which the City and the subscriber
received appropriate prior notification. A subscriber is entitled
to a full refund from any disruption to a pay-per-view event. These
credits and refunds shall be made available upon request by subscriber
and verification by subscriber that loss has occurred describing the
time, date and nature of the disruption experienced.
7. Technicians
capable of performing service-related emergency repairs and maintenance
must be available twenty-four (24) hours a day, including weekends
and holidays.
8. No charge
shall be made to a subscriber for any service call relating to cable
franchisee owned and cable franchisee maintained equipment after the
initial installation of cable service unless the problem giving rise
to the service request can be demonstrated by cable franchisee to
have been:
a. Caused
by the negligence, malicious destruction, illegal tampering or theft
of cable service or of cable equipment by the subscriber; or
b. A
problem established as having been non-cable system or cable service
in origin.
c. A
cable franchisee may also assess a service charge for service calls
in instances where the problem was not caused by the cable franchisee.
9. Cable
drop lines, cable trunk lines and any other type of outside wiring
that comprise part of a cable franchisee's cable system that are located
underground shall be placed in such locations pursuant to City Code,
and the surrounding ground shall be restored as close as is practical
to its condition immediately prior to such underground construction
activity within a reasonable period of time after connection to the
cable system. Except for a cable franchisee's maintenance facilities,
no cable drop line, cable trunk line or any other type of outside
wiring shall be permitted to lay upon the ground for an unreasonable
period of time within the City, except for the express purpose of
being immediately connected to the cable system of cable franchisee.
The requirements of this Subsection shall apply to all installation,
reinstallation, service or repair commenced by a cable franchisee
within the City during normal operating conditions.
F. Disconnections And Downgrades.
1. If any
subscriber fails to pay a properly due monthly subscriber fee or any
other properly due fee or charge, the cable franchisee may disconnect
the subscriber's outlet; provided however, that such disconnection
shall not be effected until after the later of:
a. Thirty
(30) days after the due date of said delinquent fee or charge; or
b. Fifteen
(15) days after delivery to subscriber of written notice of the intent
to disconnect. If a subscriber pays before expiration of the later
of (a) or (b), the cable franchisee shall not disconnect. Provided
however, that this Section does not apply to subscribers disconnected
as a result of insufficient funds.
2. Absent extenuating circumstances, no subscriber may be disconnected without prior written notice and the above notification of intent to disconnect in Subsection
(F)(1) above shall satisfy this notice requirement. Provided however, that no such prior notification requirement shall apply to disconnections for theft of service or other violations of law.
3. No subscriber
may be disconnected for non-payment if payment of outstanding balances
is made before the scheduled date for disconnection, up to and including
the last business day before the scheduled disconnection.
4. No subscriber
may be disconnected due to a cable franchisee's failure to timely
or correctly post payments.
5. Any
disconnection requiring a cable service representative on site shall
be performed at reasonable times. Any disconnection requested by the
subscriber at a particular time shall be deemed "reasonable" no matter
when the same occurs.
6. Absent
extenuating circumstances, a cable franchisee is not required to reconnect
a subscriber with an undisputed outstanding balance.
7. A cable
franchisee is permitted to refuse orders for premium or "pay-per-view"
services from subscribers with a record of non-payment.
8. A cable
franchisee may disconnect subscriber premises that are responsible
for signal leakage in excess of applicable Federal limits. A cable
franchisee may effectuate such disconnection without advance notice,
provided that a cable franchisee shall immediately notify the subscriber
with door tags and/or telephone calls or other reasonable means. If
the source of the signal leakage is remedied and the subscriber was
not the cause of such leakage, the cable franchisee shall reconnect
the subscriber at no charge. If the subscriber was the cause of the
signal leakage, the cable franchisee may charge a reasonable reconnection
fee. For purposes of this Section, use of FCC-approved navigation
devices does not in and of itself constitute subscriber caused signal
leakage.
9. Subscribers
may request disconnection or a downgrade of cable service at any time.
A cable franchisee may not impose any charge for service delivered
after the requested date of disconnection. Notwithstanding the foregoing,
a cable franchisee may impose a charge for service delivered after
the requested date of disconnection if the terms and conditions of
subscribing to such service were clearly disclosed to the subscriber
at the time of subscription. As provided under Federal law, subscribers
may request a downgrade at no charge if made within thirty (30) days
of a rate increase.
10. Nothing
in this Chapter or code shall limit the right of a cable franchisee
to reasonably deny cable service to any household or individual which
has a negative credit or cable service history with the cable franchisee
or another person as verified by a credit reporting agency, which
may include non-payment of bills, theft or damage to the cable franchisee's
or other person's equipment, outstanding balances or threats or assaults
on employees of the cable franchisee in the course of their employment.
G. Communications Between Cable Franchisee And Subscribers.
1. Notifications to subscribers.
a. Every
cable franchisee shall provide written information to subscribers
on each of the following topics at the time of installation, at least
annually to all subscribers and at any time upon request of a subscriber:
(1) Products and services offered;
(2) Prices and options for programming services and conditions of subscription
to programming and other services and facilities;
(3) Installation and service maintenance policies;
(4) Instructions on how to use services;
(5) Channel positions of programming offered on a system; and
(6) Billing and complaint procedures, including the name, address and
telephone number of the franchisee.
b. Subscribers
will be given thirty (30) days' advance notice of any changes in rates,
programming services or channel positions, if the change is within
the control of the cable franchisee. All such notice shall be provided
in writing by any reasonable means. In addition, the cable franchisee
shall notify subscribers thirty (30) days in advance of any significant
changes in other information required by this Section. Notwithstanding
the foregoing or any provision of this code to the contrary, a cable
franchisee shall not be required to provide prior notice of any rate
change that is the result of a regulatory fee, cable franchise fee
or any other fee, tax assessment or change of any kind imposed by
any government entity on the transaction between the cable franchisee
and the subscriber.
2. Billing.
a. Bills
must be clear, concise and understandable. Bills must be fully itemized
including, but not limited to, basic and premium service charges and
equipment charges.
b. Bills
must clearly delineate all activity during the billing period, including
optional charges, rebates and credits.
c. In
case of a billing dispute, a cable franchisee must respond to a written
complaint from a subscriber within thirty (30) calendar days.
d. Credits
for service shall be issued no later than the subscriber's next billing
cycle after determination that the credit is warranted.
3. Late charges. A cable franchisee may impose a monthly fee
for any delinquent balance owed by a subscriber, subject to the following:
a. At
least ten (10) days before the date the fee is imposed, the subscriber
shall be given written notice on the face of the bill or by separate
notice of:
(1) The date after which the fee will be imposed if the balance is not
paid; and
(2) The amount of the fee that will be imposed; and
b. The
fee for the delinquent payment shall not exceed the State statutory
maximum as may be amended from time to time.
4. Credits and refunds. Credit or refund checks will be issued
promptly, but no later than either:
a. The
subscriber's next billing cycle following resolution of the request
or thirty (30) days, whichever is earlier.
b. The
return of equipment supplied by the cable franchisee if cable services
are terminated.
H. Complaint Log. Subject to the privacy provisions of 47 U.S.C.
Section 521 et seq., every cable franchisee shall prepare as necessary
and maintain written records of complaints made to them and the resolution
of such complaints, including the date of such resolution. For purposes
of this requirement, all complaints that result in the dispatch of
a service technician shall be individually logged and for all other
complaints the cable franchisee may satisfy this requirement by the
creation of a periodic written summary of the type of complaint(s)
and where appropriate their resolution. Such complaint logs and summaries
shall be on file at the office of cable franchisee for three (3) years
available for inspection by the City upon request.
I. Parental Control. Every cable franchisee shall make available
to any subscriber upon request a "lockout" device, which may be included
within the converter, for blocking both video and audio portions of
any channel(s) of programming entering the subscriber's premises.
Such device shall be provided at a reasonable charge by sale or lease.
A cable franchisee may, however, require a reasonable security deposit
for the use of such a device.
J. Line Extension Policy.
1. A cable
franchisee may not discriminate in the build-out of its cable system
to a particular area of the City or provision of cable service to
individual or groups of residents on the basis of race, creed, religion
or economic condition. A cable franchisee shall serve all areas of
the City with populations of at least twenty (20) dwelling units per
cable mile, including areas annexed subsequent to the grant of the
franchise, unless otherwise provided by franchise ordinance. Such
line extension requirements may be modified in a franchise such as
where an franchise is granted to a prior existing cable operator located
in an area annexed subsequent to the adoption of this code or such
other circumstances that are sufficiently unique as determined by
the Governing Body as not to create an unfair competitive advantage.
2. Special agreements. Nothing herein shall be construed to
prevent a cable franchisee from serving areas not covered under this
Section upon agreement with developers, property owners or residents.
K. Customer Service Reporting Requirements. The City may require,
upon reasonable request, that a cable franchisee periodically furnish
to City semi-annual reports and any other reasonable information relevant
to the cable franchisee's compliance with the customer service requirements
of this Chapter measured on a quarterly basis to the extent that the
cable franchisee maintains such reports and information.
[Ord. No. 1283 §1(900.225), 1-16-2003]
A. Open Books And Records. Every cable franchisee shall cooperate
with the City with respect to City's administration of this code and
any applicable franchise subject to it. Subject to the privacy provisions
of the Cable Act, City shall have the right to inspect, upon five
(5) business days' notice, during normal business hours, all books,
records, maps, plans, certified financial statements, service complaint
logs, performance test results and other existing like materials of
a cable franchisee that relate and are material to the operation of
the cable franchisee's cable system and that are reasonably necessary
to grantor's enforcement or administration of this code or the cable
franchisee's franchise. A cable franchisee shall not be required to
maintain any books or records for franchise compliance purposes longer
than three (3) years, except that financial records necessary to demonstrate
compliance with the required cable franchise fee payments shall be
kept for six (6) years. Upon request, the City will treat designated
information disclosed by a cable franchisee as confidential to the
extent permissible under State and Federal law and will advise said
cable franchisee of any third party requests for such information
so that franchisee may take appropriate and authorized steps to protect
its rights. All such review of a cable franchisee's books and records
shall be performed by an independent party if the City itself enters
into the business as a competitor.
B. Communications With Regulatory Agencies. Copies of all non-confidential
petitions, applications, communications and reports submitted by a
cable franchisee to the FCC, Securities and Exchange Commission or
any other Federal or State regulatory commission or agency which directly
relate to the operation of the cable system in the City shall be made
available contemporaneously to the City upon request. Copies of responses
from the above regulatory agencies to a cable franchisee likewise
shall be made available promptly to the City upon request. If the
City is specifically named in any such pleading or response, the City
shall automatically be furnished a copy.
C. Annual Reports.
1. Upon
request, a cable franchisee shall make available to City, within ninety
(90) days of the end of each of the applicable cable franchisee's
fiscal years during the term of a franchise, the following:
a. A
revenue statement certified by a representative of the cable franchisee
showing the gross revenues of the cable franchisee for the preceding
fiscal year;
b. A
current list of names and addresses of each officer and director and
other management personnel of the cable franchisee;
c. A
statement of the cable franchisee's current billing practices and
charges;
d. A
copy, if any, of the cable franchisee's current subscriber service
contract; and
e. A
copy of annual reports to stockholders, if any, for the operating
company and parent company.
f. An
index of all technical and operational reports that franchisee is
required to develop and maintain in its public file with respect to
its cable system pursuant to Federal law.
|
Other than Subsection (C)(1)(f), all of the above information shall not be required annually unless there is a change after the first (1st) filing.
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2. City
and its agents and representatives shall have authority to arrange
for and conduct an audit during normal business hours of the books
and records of cable franchisee that are reasonably necessary for
the enforcement of a franchise. A cable franchisee shall first be
given thirty (30) days' notice of the audit, the description of and
purpose for the audit and a description, to the best of City's ability,
of the books, records and documents that City wants to review. The
costs and expense of such audit shall be borne by the cable franchisee
if the audit reveals an underpayment of five percent (5%) or more.
3. Any
review or audit of a cable franchisee's books and records shall be
performed by an independent party if the City itself enters into business
as a competitor to a cable franchisee. In such case, all confidential
information obtained during the audit shall not be disclosed to the
City or any other party.
D. Service Contract And Subscriber Information.
1. A cable
franchisee shall have authority to promulgate such rules, regulations,
terms and conditions governing the conduct of its business as shall
be reasonably necessary to enable the cable franchisee to exercise
its rights and perform its obligations under this Chapter and its
cable franchise and to assure uninterrupted cable service to all of
its subscribers; provided such rules, regulations, terms and conditions
shall not be in conflict with the provisions of this code, Federal,
State and/or local law or any applicable rules and regulations.
2. Upon
request, a cable franchisee shall submit to City any standard residential
subscriber contract form that it utilizes. If no written contract
exists, a cable franchisee shall file with the City a document completely
and concisely stating the terms of the standard residential subscriber
contract offered.
[Ord. No. 1283 §1(900.230), 1-16-2003]
A. Construction Standards.
1. Rights-of-way construction. Prior to commencing any construction
in the City, franchisee must obtain all necessary permits and licenses
required by Federal, State and City laws, ordinances and rules and
pay all associated fees. Franchisee shall comply in full with the
ROW ordinance, as may be and amended from time to time. A franchise
agreement shall be deemed to establish supplementary requirements
to the extent these requirements conflict with the ROW ordinance or
Cable Services Code, the most restrictive requirements shall apply.
Further, franchisee shall comply with all other applicable laws, ordinances,
rules and standards relating to the construction, operation and maintenance
of a cable television system.
B. Compliance With Laws. At a minimum and without limitation,
franchisee shall adhere to all building, electrical and zoning codes
currently or hereafter in force in the City. The construction, installation
and maintenance of the cable system shall be effectuated by franchisee
in a manner that is consistent with the laws, ordinances and construction
standards of the State of Missouri, the Occupational Safety and Health
Administration, the National Electrical Safety Code, National Electrical
Code, FCC and the Standards of Good Engineering Practices for Measurement
of Cable Television Cable Systems of the National Cable Television
Association to the extent applicable, as well as all other applicable
laws, rules, regulations and ordinances that may be modified or amended
from time to time. All open connections on splitters, couplers and
other devices shall be properly terminated.
C. Minimum Interference. All of franchisee's construction,
installation, operation, repair and maintenance and the arrangement
of its lines, cables and other appurtenances, on both public and private
property, shall be conducted in such a manner as to cause minimum
interference with the rights and reasonable convenience of the public
and any property owners that may be affected. In the event of any
such interference, the City may require the removal of franchisee's
lines, cables and appurtenances from the right-of-way in question,
at the sole expense of franchisee.
D. Repair Of Property. Franchisee shall promptly repair and
restore any City or private property which may be damaged as a result
of the construction, installation, operation, repair or maintenance
of the cable system. Any such property damaged or destroyed shall
be promptly repaired and restored by grantee, at franchisee's sole
cost and expense, to its condition prior to being damaged or shall
be replaced by franchisee with equivalent property.
E. Erection Of Poles Prohibited. Franchisee shall not erect,
for any reason, any pole on or along any rights-of-way in an existing
aerial utility system. Franchisee may obtain the lease of pole space
and facilities from the existing utility pole owners. If additional
poles in an existing aerial route are required, franchisee may negotiate
with the utility for the installation of the needed poles. Any such
addition shall require the advance written approval of the City.
F. Reservations Of Street Rights. Nothing in a franchise shall
be construed to prevent the City from constructing sewers, grading,
paving, repairing or altering any rights-of-way or laying down, repairing
or removing water mains or constructing or establishing any other
public work. All such work shall be done, insofar as practicable,
in such manner as not to obstruct, injure or prevent the free use
and operation of poles, wires, conduits, conductors, pipes or appurtenances
of franchisee. If any such property shall interfere with the construction
or repair of any rights-of-way or public improvement, whether it be
construction, repair or removal of a sewer or water main, the improvement
of any rights-of-way or any other public improvement, then all such
property of franchisee shall be removed or replaced in such manner
as shall be directed by the City so that the same shall not interfere
with the public works of the City. Such removal or replacement shall
be at the expense of franchisee, except to the extent funds are made
available under applicable law.
G. Exclusion Of Certain Locations/Facilities. Prior to its
installation of any system facilities in the rights-of-way and after
it provides the City with its proposed plans for the facilities, the
City may in its discretion designate certain locations or facilities
in the rights-of-way to be excluded from use by franchisee for its
facilities including, but not limited to, ornamental or similar specially
designed streets lights or other facilities or locations which, in
the reasonable judgment of the City, are not appropriate for the franchisee's
system facilities or any other facility or location that in the reasonable
judgment of the City Engineer is incompatible with the proposed facilities
or would be rendered unsafe or unstable by the installation. The City
Engineer may further exclude certain other facilities that have been
designated or planned for other use or are not otherwise available
for use by franchisee due to engineering, technological, proprietary,
legal or other limitations or restrictions as may be reasonably determined
by the City.
H. Location, Type And Design Of Facilities Subject To Approval. The location and nature of all facilities shall be subject to the
review and approval of the City Engineer. Such review shall be based
on non-discriminatory bases in application of City policy and approvals
shall not be unreasonably withheld. Unless extraordinary circumstances
exist, good cause shall not include authorization for above ground
facilities requiring new poles. Except as provided herein, all facilities
constructed after the date of this agreement shall be placed underground
and in conduit, where capable, unless existing above ground structures
requiring no major modification are available. Above ground pedestals,
vaults, antennae or other facilities may be installed if less than
sixty (60) inches above the ground or otherwise only if approved by
the City where alternative underground facilities are not feasible
or where underground requirements are otherwise waived pursuant to
the provisions of this Subsection. Existing conduit shall be used
where feasible and available. Where reasonable and appropriate and
where adequate public rights-of-way exist, the franchisee shall place
above ground facilities underground in conjunction with City capital
improvement projects and/or at specific locations requested by the
City provided that such placement is practical, efficient and economically
feasible. Unless specifically authorized herein or otherwise by the
City, wired access point antennae/towers located on the rights-of-way
or other City owned or controlled property shall not be authorized
by a franchise, but shall require a separate lease or use agreement
with the City. City height limitations, applicable zoning restrictions
and general City policy with regard to all users of the rights-of-way
shall also be applicable to all facilities.
I. Notification, Joint Installation And Collocation Requirements. Franchisee shall, prior to any excavation or installation within
the rights-of-way, provide sufficient notification and joint installation
opportunity on a shared-cost basis to potential users of the rights-of-way
as may be provided for by separate City policy. Such notification
and adopted policies shall be designed to maximize collocation of
providers, to minimize the disturbance to the rights-of-way and maximize
its useable capacity. Franchisee shall further make its installed
facilities available to other franchisees on a non-discriminatory
competitively neutral basis consistent with the requirements of Federal
law.
J. Aerial Drop Lines. For subscribers requesting connection
requiring a drop in excess of one hundred twenty-five (125) feet,
franchisee shall extend cable service at a rate not to exceed franchisee's
actual direct incremental cost of installation from its main distribution
system.
K. Clearing Poles And Cables. Franchisee shall have the right
to remove, trim, cut and to keep clear of its poles, cables, underground
conduits and related equipment the trees in and along the public streets,
but in the exercise of such right, franchisee shall not cut such trees
to any greater extent than is reasonably necessary for the construction,
erection, installation, maintenance and use of cable system equipment.
Franchisee shall compensate the City or any private owners of such
trees for any damage caused by such trimming that exceeds what is
allowed under City Code or permit.
L. Temporary Disconnections. Franchisee shall be required,
at its expense, to protect, support, temporarily disconnect, relocate
in or remove from, public streets, lands or places any property of
franchisee whenever required by City upon reasonable written notice
by reason of traffic conditions, public safety, street construction
or any other public purpose. If public funds are available to any
person using such street, easement or rights-of-way for the purpose
of defraying the cost of any of the foregoing, upon request the City
shall assist franchisee in making application for such funds.
M. Moving Facilities. Franchisee, on the request of the City
or any person holding a building permit issued by the City or any
permit issued by an appropriate State agency, shall temporarily move
its wires, cables, poles or other cable system facilities to permit
the moving of large objects, vehicles, buildings or other structures.
The expense of such temporary moves shall be paid to franchisee by
the person requesting the same and franchisee shall have the authority
to require such payment in advance. Franchisee shall be given not
less than thirty (30) days' advance notice to arrange for such temporary
moves, unless emergency conditions warrant otherwise.
N. Work Performed By Others.
1. Franchisee
shall make available to the City the names and addresses of any person,
other than franchisee, which performs services pursuant to this agreement;
provided however, that all provisions of this agreement remain the
responsibility of franchisee.
2. All
provisions of a franchise agreement shall apply to any subcontractors
or others performing any work or services pursuant to the provisions
of this code on behalf of franchisee.
O. Safety And Mapping.
1. Franchisee
shall at all times employ the standard of care attendant to the risks
involved and shall install and maintain in use commonly accepted methods
and devices for preventing failures and accidents that are likely
to cause damage, injury or nuisance to the public or to employees
of the franchisee.
2. All
lines, equipment and connections in, over, under and upon the rights-of-way
and private property within the City, wherever situated or located,
shall at all times be kept and maintained in a safe and suitable condition
and in good order and repair.
3. Upon
completion of any construction, upgrade or rebuild, franchisee shall
provide the City a copy of all strand-and-trench maps, which shall
be in digital form and franchisee shall include a copy of such information
in an electronic copy specified by the City Engineer in a common mapping
format, along with traditional hardcopy maps.
P. Duty To Franchisee. Nothing contained in a franchise shall
relieve any person from liability arising out of the failure to exercise
reasonable care to avoid injuring franchisee's facilities while performing
any work connected with grading, regarding or changing the line of
any rights-of-way or with the construction or reconstruction of any
sewer, water or utility system.
[Ord. No. 1283 §1(900.235), 1-16-2003]
A. Annual Cable Franchise Fee.
1. As compensation
for grant of a cable franchise and in consideration of permission
to use the rights-of-way of the City for the construction, operation,
maintenance and reconstruction of a cable system and to defray the
costs of cable franchise obligations, every cable franchisee shall
pay to the City on an annual basis throughout the term of its cable
franchise, a franchise fee as set forth in the applicable franchise
agreement.
2. Further,
every cable franchisee that offers any "bundled" services shall fairly
reflect as part of its calculation of applicable franchise fees an
appropriate and reasonable division of services among the various
services offered. The specific cost accounting for such revenue attribution
shall be set out in the individual franchise or other agreement.
3. Payments
due City under this Section shall be computed quarterly for the preceding
quarter, as of March thirty-first (31st), June thirtieth (30th), September
thirtieth (30th) and December thirty-first (31st). Each quarterly
payment shall be due and payable no later than forty-five (45) days
after the dates listed in the previous sentence. Each payment shall
be accompanied by a brief report by the cable franchisee showing the
basis for the computation and a "cable franchise fee worksheet" listing
all of the sources of revenues attributable to the operation of the
cable franchisee's system.
4. Should
any additional monies be due to the City as a result of information
contained in the annual financial report of a cable franchisee or
by audit as permitted by this Chapter, the cable franchisee shall
pay such additional monies to the City within sixty (60) days after
receipt of notice of same from the City.
5. In the
event that any of the quarterly cable franchise fee payments are not
timely made, a cable franchisee shall also pay the City interest thereon
at the then-current prime rate. Said interest to be applied commencing
with the forty-fifth (45th) day after the end of the quarter and continuing
until all such overdue sums (including interest) are paid.
6. No acceptance
of any payment shall be construed as an accord that the amount paid
is in fact the correct amount, nor shall such acceptance of payment
be construed as a release of any claim the City may have for further
sums payable under the provisions of this Chapter, Code or applicable
franchise. All amounts paid shall be subject to audit and recomputation
by the City or its designee at any time upon reasonable notice and
specification of the documents requested to be reviewed.
B. Remedies And Enforcement Procedure.
1. Whenever
the City has reason to believe that a cable franchisee has violated
any material provision of this code or its franchise, including the
customer service and telephone availability requirements, the City
shall first notify the cable franchisee in writing of the violation
and demand correction within a reasonable time which shall not be
less than thirty (30) days. If the cable franchisee fails to demonstrate
to the reasonable satisfaction of the City that no violation exists,
or if the cable franchisee fails to correct the violation within the
time prescribed, or if the cable franchisee is unable to correct the
violation and fails to commence corrective action within the time
prescribed and to diligently remedy such violation thereafter, the
cable franchisee shall then be given written notice of a public hearing
to be held before the Board of Aldermen. Said notice shall indicate
with reasonable specificity the violation alleged to have occurred.
This procedure shall apply to all alleged code or cable franchise
violations, including those in which grounds for revocation are considered.
2. At the
public hearing, the Board of Aldermen shall hear and consider all
relevant evidence and thereafter render written findings and a written
decision based upon the evidence.
3. In the
event the cable franchisee has corrected the violation or promptly
commenced correction of such violation after notice thereof from the
City and is diligently proceeding to fully remedy the violation or
that no violation has occurred, the proceedings shall terminate and
no penalty or other sanction shall be imposed.
4. In the
event that a violation exists and that the cable franchisee has not
corrected the same in a satisfactory manner or did not promptly commence
and diligently proceed to correct the violation, the City may impose
penalties and/or liquidated damages from the Security Fund, as follows:
a. For
system construction schedule violations including, but not limited
to, provisions relating to initial construction schedules and system
upgrade construction schedule, five hundred dollars ($500.00) per
day of non-compliance;
b. For
all other violations, two hundred fifty dollars ($250.00) per day
per violation.
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The City shall provide the cable franchisee with written notice
of its decision together with a written finding of fact explaining
the basis for such a decision.
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5. In the
event that a cable franchise is cancelled or terminated by reason
of the default of the cable franchisee, the Security Fund deposited
pursuant to the cable franchise shall remain in effect and available
to the City until all pending claims or penalties are resolved or
settled, after which point any remaining amounts in the Security Fund
shall revert to the possession of the cable franchisee.
6. The
rights reserved to the City with respect to the Security Fund are
in addition to all other rights of City, whether reserved by this
code, applicable cable franchise, or authorized by law, and no action,
proceeding or exercise of a right with respect to such Security Fund
shall affect any other right City may have.
7. The
foregoing provisions shall not be deemed to preclude the City from
obtaining any other available remedies for repeated violations.
C. Grounds For Revocation. In addition to any rights in this
code or applicable franchise, the City reserves the right to revoke
a franchise and all rights and privileges pertaining thereto, in the
event that any of the following occur and the City and a cable franchisee
are not able to mutually agree upon a cure or alternate remedy:
1. The
cable franchisee substantially violates any material provision of
this code or its franchise;
2. The
cable franchisee practices an act of fraud or deceit upon the City;
or
3. The
cable franchisee becomes insolvent or is adjudged bankrupt.
D. Right Of Appeal.
1. Upon
the imposition of a penalty or revocation decision, a cable franchisee
shall have a period of thirty (30) days subsequent to the date of
the formal adoption of the decision by the Board of Aldermen within
which to file an appeal with a court of competent jurisdiction.
2. During
any such appeal period, the cable franchise shall remain in full force
and effect.
[Ord. No. 1283 §1(900.240), 1-16-2003]
A. Foreclosure. Upon the foreclosure or other judicial sale
of all or a part of a cable system or upon the termination of any
lease covering all or part of a cable system, a cable franchisee shall
notify the City of such fact and such notification shall be treated
as a notification that a change in control of the cable franchisee
has taken place and the provisions of this code governing the consent
to transfer or change in ownership shall apply without regard to how
such transfer or change in ownership occurred.
B. Receivership. The City shall have the right to cancel a
cable franchise one hundred twenty (120) days after the appointment
of a receiver or trustee to take over and conduct the business of
a cable franchisee, whether in receivership, reorganization, bankruptcy
or other action or proceeding, unless such receivership or trusteeship
shall have been vacated prior to the expiration of said one hundred
twenty (120) days or unless:
1. Within
one hundred twenty (120) days after its election or appointment, the
receiver or trustee has fully complied with all the provisions of
the cable franchise and remedied all defaults thereunder; and
2. Such
receiver or trustee, within said one hundred twenty (120) days, has
executed an agreement, duly approved by a court having jurisdiction,
whereby such receiver or trustee assumes and agrees to be bound by
each and every provision of this code and applicable cable franchise.
[Ord. No. 1283 §1(900.245), 1-16-2003]
If a renewal or extension of a cable franchise is denied without
further right of appeal or a cable franchise is lawfully terminated
with all rights of appeal exhausted, the City may acquire ownership
of the cable system or effect a transfer of ownership of the cable
system to another person and any such acquisition or transfer shall
be in accordance with and to the extent permitted by 47 U.S.C. Section
547 as it exists now or may be amended.
[Ord. No. 1283 §1(900.250), 1-16-2003]
A. A cable
franchisee shall not sell, transfer, lease, assign, sublet or dispose
of, in whole or in part, an ownership interest in or control of a
cable franchise or cable system without the prior consent of the City,
which consent shall not be unreasonably withheld.
B. Within
thirty (30) days of a franchisee carrying any communications service
for a reseller of any communications services through franchisee's
facilities, franchisee shall notify City of the name and address of
such reseller, the reseller rates or tariffs to be paid to franchisee
relating to such reseller and provide to City any written commitment
which exists as to the payment of use fees for the revenues attributable
to such reseller.
C. The following
events shall be deemed to be a sale, assignment or other transfer
of an interest in or control of a cable franchise or cable system
requiring compliance with this Section:
1. The
sale, assignment or other transfer of all or a majority of a cable
franchisee's cable system assets in the City;
2. The
sale, assignment or other transfer of capital stock or partnership,
membership or other equity interests in a cable franchisee by one
(1) or more of its existing shareholders, partners, members or other
equity owners so as to create a new controlling interest in cable
franchisee;
3. The
issuance of additional capital stock or partnership membership or
other equity interest by a cable franchisee so as to create a new
controlling interest in a cable franchisee; and
4. A cable
franchisee's agreement to transfer management or operation of the
cable franchisee or the system to an unaffiliated entity so as to
create a new controlling interest in the cable franchisee. The term "controlling interest", as used herein, means majority equity
ownership of a cable franchisee.
D. A transfer
solely for security purposes such as the grant of a mortgage or security
interest, including the pledge or grant of a mortgage or security
interest to lenders of a cable franchisee's assets including, but
not limited to, the cable franchise, such as in a transaction commonly
known as an "initial public offering", shall not be deemed to be a
sale, assignment or other transfer of an interest in or control of
a cable franchise or cable system and thus shall not require compliance
with this Section.
E. In any
case where Federal law requires the consent of the City to any sale
or transfer of ownership of an interest in or control of a cable franchise
or cable system, the City shall have one hundred twenty (120) days
to act upon any request for approval of such sale or transfer that
contains or is accompanied by such information as is required in accordance
with FCC regulations and the requirements of this code. If the City
fails to render a final decision on the request within one hundred
twenty (120) days after receipt by the City of all required information,
such request shall be deemed denied unless the requesting party and
the City agree to an extension of the one hundred twenty (120) day
period.
F. The City
reserves any legal right it has under applicable law to require a
cable franchisee to pay all costs and expenses incurred by the City
in connection with the sale, assignment or transfer of a cable franchise
including, but not limited to, the City's costs of reviewing the qualifications
of any proposed transferees.
[Ord. No. 1283 §1(900.255), 1-16-2003]
A. Discriminatory Practices Prohibited. A cable franchisee
shall not deny cable service, deny access or otherwise discriminate
against subscribers, programmers or general citizens on the basis
of income level, race, color, religion, national origin, sex or age.
Every cable franchisee shall strictly adhere to the equal employment
opportunity requirements of State and Federal laws. Every cable franchisee
shall comply at all times with all other applicable Federal, State
and local laws and all executive and administrative orders relating
to non-discrimination.
B. Subscriber Privacy. Every cable franchisee shall at all
times comply with the Federal subscriber privacy requirements codified
at 47 U.S.C. Section 551.
[Ord. No. 1283 §1(900.260), 1-16-2003]
A. Rate Regulation. The City reserves the right to regulate
rates for basic cable service and any other services offered over
a cable system to the extent permitted by Federal or State law. A
cable franchisee shall be subject to the rate regulation provisions
provided for herein and those of the Federal Communications Commission
(FCC) at 47 C.F.R., Part 76.933, Subpart N. The City shall follow
the rules relating to cable rate regulation promulgated by the FCC
at 47 C.F.R., Part 76.933, Subpart N.
B. Rights Reserved To City. Upon either final non-appealable
determination of non-renewal or revocation of a cable franchise, City
shall have discretion to permit a cable franchisee by mutual consent
to continue to operate the cable system for an extended period of
time agreed upon by the parties. Any such operation of the system
by a cable franchisee shall be in accordance with the terms and conditions
of this code and the cable franchise shall provide the regular subscriber
service and any and all of the services that may be provided at that
time.